JOHN GONCALVES; KIRK HELLMUTH; GEORGIANN L. HELMUTH, As She Is Trustee of the HELMUTH REALTY TRUST; and ANTHONY M. DIMASI v. KENNETH FERREIRA, DONALD S. McKINLAY, JOHN P. CRONAN, MICHAEL A. MARTIN, MICHELLE B. ZOLLO, RICHARD SECHER, MARY SCARCIOTTI, and DAVID SHARKEY, as they are members of the Zoning Board of Appeals of Wareham; TEODORE MISIASZEK, as he is the Zoning Enforcement Officer of the Town of Wareham; JOHN J. LAVALLEE and SHARON J. LAVALLEE

MISC 323695

July 8, 2008

PLYMOUTH, ss.

Piper, J.

DECISION

This case is before the court (Piper, J.) on cross motions for summary judgment.

The plaintiffs, John Goncalves, Kirk Hellmuth, Georgiann L. Hellmuth, Trustee of the Hellmuth Realty Trust, [Note 1] and Anthony M. DiMasi, have moved for a summary judgment that would overturn the decision (Decision) of the Zoning Board of Appeals of Wareham (Board) complained about in this action. Plaintiffs also seek declaratory relief. In the Decision, filed with the Wareham Town Clerk on May 10, 2006, the Board, whose members are defendants, decided an administrative appeal brought to the Board concerning the request by the Lavallees predecessor in title, members of the Coletti family, for a building permit to construct a residence on the 9 Roby Street lot (Lot 4). The Board, in its Decision, did not order the defendant Director of Inspectional Services for the Town of Wareham (Inspector) to rescind a building permit he had issued to the defendants John J. and Sharon J. Lavallees predecessor in title, Thomas Coletti. Plaintiffs in their motion for summary judgment argue that, as matter of law and without any material facts being in dispute, the court should determine that no residence structure may be built on Lot 4, and should reverse the Boards Decision.

The Lavallees have cross moved for summary judgment. They first ask the court to enter summary judgment in their favor on the grounds that plaintiffs do not qualify as person[s] aggrieved pursuant to G.L. c. 40A, § 17, and lack the standing required to appeal. Should the court reach the merits of the case, in the alternative the Lavallees ask the court to rule, as matter of law, that the Decision upholding the Inspectors issuance of the building permit was correct and should stand.

After hearing, I now decide the pending motions. After review of the summary judgment record, including all of the facts properly before the court pursuant to Mass. R. Civ. P. 56(c), and upon consideration of the arguments presented at the hearing, I decide that there are no genuine issues of material fact precluding disposition of this case as a matter of law. See Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002); Community Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976). In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and an adverse party may not manufacture disputes by conclusory factual assertions. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648. A movant is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that partys case. Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991).

After due consideration of the record and arguments and submissions of counsel, I decide that summary judgment must enter in plaintiffs favor.

The following facts are supported by the record and appear without material dispute.

The building permit under review in these proceedings authorizes the construction on Lot 4 of a 38-foot by 26-foot modular single-family residence, to be erected on pilings or stilts. The plans call for a Cape style structure that will contain two bedrooms and one bathroom, and have two floors. The 9 Roby Street parcel is 5,605 square feet in area with 50 feet of frontage. Current zoning requires 30,000 square feet and 150 feet of frontage.

On August 11, 1950, Luigi Coletti became by deed the owner of Lot 4. On the same date, the land abutting Lot 4--Lot 5--was by deed conveyed to Luigi Coletti and Felicia Coletti, his wife. Lot 5 today is owned by plaintiff Goncalves. In 1962, Luigi Colleti conveyed Lot 4 to Alfred T. and Mary C. Coletti.

Zoning first was enacted in Wareham on November 5, 1951. At first, the law required lots in the district which included Roby Street to contain 6,500 square feet and have 65 feet of frontage. The zoning requirements became more intensive over time. In 1966, the requirements rose to 10,000 square feet and 100 feet of frontage. The current required area, 30,000 square feet, was imposed in 1971. The locus is in the Residential 30 District.

Hurricane Carol came to New England in 1954; it passed over Wareham and caused considerable damage. The parties agree that prior to Hurricane Carol there stood on Lot 4 a small single-family home, which the storm destroyed. Remnants of the stone foundation of this house remain on Lot 4. Since 1954, there has been no house or other improvement present on the 9 Roby Street locus.

The decision under review in the instant case certainly is not the first one considered by the Board and officials in the Town concerning the construction of a residence on Lot 4. In 2000, in response to inquiry by counsel for then owner Alfred Coletti, the then building inspector determined that he could not issue a building permit for construction on Lot 4. The inspectors determination was that Lot 4 was unbuildable because it earlier had been held in common ownership with other abutting land. After conducting a review, the inspector had determined that a single family residence could not be built lawfully on the lot because it was held in common ownership with an adjacent lot [Lot 5] at the time of the zoning change that affected the lot (November 19, 1951) when zoning was created in Wareham and lots in this district required 6500 square feet with 50 feet of frontage. These determinations were made in a letter dated June 27, 2000 to Colettis counsel. In a September 12, 2000 letter to Colettis lawyer, the inspector confirmed his opinion that, by virtue of the common control of Lots 4 and 5, they were in contiguous ownership. The inspector was of the view, in essence, that the two side-by-side lots, owned in common by members of the Coletti family since before the advent of zoning in Wareham, had caused the two lots to merge for purpose of determining zoning dimension compliance. Faced with this adverse ruling, on October 6, 2000, Coletti filed with the Board an appeal, which they accompanied with an application for a Variance/Special Permit.

On administrative appeal, after hearing on November 8, 2000, the Board issued its decision (2000 Decision). (Coletti requested leave to withdraw the variance petition, which the Board granted without prejudice.) Considering the appeal from the zoning determination of the inspector, the board disagreed with him. The Board overturned the inspectors determination that he could not issue a building permit for Lot 4. The Board arrived at this conclusion based on its determination that there had been sufficiently separate ownership of Lots 4 and 5 at relevant times, and that as a result, in effect, the two lots had not merged for zoning dimensional compliance purposes. The Board voted unanimously that:

The Board finds to grant an overturn of the Building Inspectors decision not to issue a building permit to construct a single-family dwelling based on the fact that there is separate ownership and Lots 4 and 5 were independently buildable under Section 6 [of G.L. c. 40A].

There is some disagreement among the parties about what did and did not happen following the 2000 Decision. There is no disagreement, however that there was no judicial appeal by any party from the 2000 Decision. Nor was there any request following the 2000 Decision by the owner of Lot 4 for a building permit. No variance or special permit ever has been obtained with respect to Lot 4. No construction has taken place since the 2000 Decision, and no building permit was applied for until December 2005. On December 10, 2005, a building permit issued to Thomas A. Coletti, Executor of the Estate of Alfred T. Coletti, for construction of a single-family residence on Lot 4. This is the permit which is the subject of the appeal now under review in the instant action.

The Lavallees purchased Lot 4 in February, 2006. At the time of their purchase, no visible work had been commenced on Lot 4 under the building permit. Nor had any work been undertaken when, on February 21, 2006, counsel for plaintiffs wrote to the Inspector, requesting revocation of the building permit. In his letter, plaintiffs lawyer referred to the 2000 Decision, and argued to the Inspector that it did not address the issue on which plaintiffs were seeking revocation of the permit. The letter to the Inspector said:

...[the 2000 Decision]... did not address the issue of whether or not the removal of the structure which had been on Lot 4 in 1955, after the hurricanes of that year, followed by non-action for well over 30 years, resulted in an abandonment of the right to rebuild or build on Lot 4.

It is my clients position that the decision of the Appeals Court in Dial Away Company, Inc. vs. Board of Appeals of Auburn, 41 Mass. App. Ct. 165 ... specifically requires a finding that Lot 4 is not buildable.

The Inspector did not accede to the plaintiffs request. He wrote on March 8, 2006 to plaintiffs counsel that the Inspector considered himself bound by the 2000 Decision of the Board. On this ground he declined to revoke the building permit. On March 15, 2006, plaintiffs filed with the Board their administrative appeal of this decision by the Inspector to leave the building permit in effect. After a public hearing, held on April 26, 2006, at which the Board entertained extended argument by counsel, and at which plaintiffs pressed the point that they sought revocation of the building permit based on the principle enunciated in the Dial Away decision of the Appeals Court, the Board issued the Decision, in which it voted to uphold the Building Inspectors issuance of the building permit and not to revoke the building permit. The Board in its Decision relied on the fact that [a]rguments concerning the lot status were heard at a ZBA public hearing on November 8, 2000; the lot was determined to be a buildable lot. The Decision observed that the time required to appeal the earlier ZBA decision of November 8, 2000 by any person or abutter with standing expired without appeal..., and that [n]o new information has been presented.

Plaintiff John Goncalves owns the lot directly abutting Lot 4 to the north; he maintains a single-family home there. Plaintiff Georgiann Hellmuth, Trustee, owns property which is directly south of Lot 4; she has a single-family residence on her land. Her son, plaintiff Kirk Hellmuth, is, together with his siblings, a beneficial owner under the trust that is the record owner of this property (see note 1). Plaintiff Anthony DiMasi (along with his wife, Marilyn J. DiMasi), owns the lot, improved with a single-family home, at 10 Roby Street, directly across Roby Street from Lot 4.

Plaintiffs assert that they are aggrieved by the Decision because the Board decided the administrative appeal solely on the issue of merger of Lots 4 and 5 for zoning compliance purposes, a question which the Board concluded had been determined with finality in the 2000 Decision. The Board rebuffed plaintiffs attempts to raise the different argument they made, also unsuccessfully, to the Inspector when they asked him to revoke the building permit--that, under G.L. c. 40A, §6, as interpreted by the courts, the one-time presence of a residential structure on Lot 4, and the passage of many years without rebuilding, prevented Lot 4 from retaining its buildable status under that statute.

Because the Board precluded plaintiffs from advancing this position, or because the Board felt itself bound to follow the 2000 Decision, the Board upheld the Inspectors determination that he would not revoke the building permit.

Before the court can proceed to adjudicate the merits of the Boards decision, the court must have in front of it a plaintiff with sufficient standing. This is the first, threshold issue upon which the pending motions call for a ruling from this court.

As a result of the Boards Decision, and the construction of a new residence on Lot 4 that the Decision allows to go forward, plaintiffs contend that they are aggrieved. They contend that their properties, located across the street from and abutting the locus, will suffer diminution in value if the Lavallees do construct a new house on Lot 4, which has remained vacant for 50 years. The Lavallees filed with their summary judgment submissions the report of an individual they claim is an expert in valuation matters; the Lavallees say this submission shows that the proposed construction, if completed, will not adversely affect the values of plaintiffs property. The Lavallees argue that plaintiffs do not have aggrievement of the sort required to bring the instant case. The plaintiffs assert that they are aggrieved, that they are entitled to a statutory presumption of aggrievement, and that, in any event, there has been, as a legal and evidentiary matter, nothing put into the summary judgment record by the Lavallees to controvert plaintiffs presumptive standing. Plaintiffs have challenged the report on valuation submitted by the Lavallees as not being under oath, and based on the lack of expertise of the individual who prepared it. The plaintiffs have moved to strike the report. They have, in addition, put in their own experts appraisal evidence.

Under G.L. c. 40A, § 17, only persons aggrieved have standing to appeal a decision of a zoning board of appeals. If a plaintiffs legal or property rights will (or likely will) be infringed by a boards action, then he qualifies as a person aggrieved. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Circle Lounge & Grille, Inc. v. Bd. of Appeal of Boston, 324 Mass. 427 , 430 (1949). While the term person aggrieved is not to be narrowly construed, the plaintiffs injury must be more than speculative, and must be particularized and distinct from general community interests. Marashlian, 421 Mass. at 721; Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682 (2003); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492_493 (1989) (requiring that plaintiff show a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest). The injury claimed by the plaintiff also must be legitimately within the scope of the zoning laws. Marashlian, 421 Mass. at 722. Sweenie v. A.L. Prime Consultants, 451 Mass. 539 , 543 (2008). See Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999).

There is an initial presumption that an abutter who is entitled to notice of board hearings is a person aggrieved, although that presumption will fall away if adequately challenged, the question then to be decided on all the evidence. See Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32-33 (2006); Marashlian, 421 Mass. at 721; Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 203-4 (1957). It is undisputed that Goncalves is the owner of a residential lot located at 11 Roby Street, and Hellmuth is the owner of a residential lot located at 7 Roby Street, both adjacent to the Site. It is also undisputed that DiMasi is the owner of a residential lot located at 10 Roby Street, directly opposite the locus. Because of their properties proximity to Lot 4, plaintiffs enjoy the rebuttable presumption of standing provided by the statute to parties in interest, which include the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to abutters within 300 feet of the property of the petitioner as they appear on the most recent applicable tax list. See G. L. c. 40A, § 11.

The question of a zoning appeal plaintiffs aggrievement has no immunity from the ordinary principles of summary judgment. These issues may, in appropriate cases, be determined on summary judgment, and do not necessarily require a trial. A defendant who challenges a plaintiffs standing on summary judgment may prevail on that issue by demonstrating by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving a legally cognizable injury. Standerwick, 447 Mass. at 35 (quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991)). On summary judgment, the examination the court makes of the record is to see whether it contains evidence which would permit the court to proceed to a trial, after which, as trier of fact, the court would weigh the evidence, and decide whether or not the evidence presented at trial shows the plaintiff to be aggrieved within the standards of the decisional law. Competing evidence is not weighed, nor credibility assessed, when the case is before the court on summary judgment.

If a plaintiff in an appeal pursuant to G.L. c. 40A, §17 enjoys (as do the plaintiffs in the case before the court) a presumption of standing, the presumption is sufficient to take away the question of aggrievement from those the court must try--unless and until the defendant, by proper evidentiary material, places the plaintiffs standing in controversy. If there is in the record on summary judgment nothing, in proper evidentiary form, that would support a conclusion, by the trier of fact, that the plaintiff lacks particularized aggrievement, then the presumptive plaintiff, relying on the intact presumption, may have the court reach the merits of his judicial appeal.

For the reasons set forth below, I decide that the summary judgment record contains no evidence in proper form which could support a finding after trial that these plaintiffs lack the requisite aggrievement. I conclude, as a matter of law, that the plaintiffs aggrievement has not been challenged on summary judgment as the law requires, and that the plaintiffs, based on their undisturbed presumption, do have standing to appeal the Decision. On this issue I deny the Lavallees request for summary judgment.

A claim of diminution in property value, if properly supported, may provide a basis for aggrievement which confers standing under G.L. c. 40A, § 17. Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329 , 330 n. 4 (1993); Barvenick v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 133 (1992). However, to support a plaintiffs standing in a G.L. c. 40A appeal, a claim of diminution in value must be tethered to some private legal or property interest which is intended to be protected by the applicable zoning scheme. Standerwick, 447 Mass at. 31-32.

The Lavallees have supported their motion for summary judgment with respect to diminution in value with a report from Paul Garvin, an individual unlicensed as an appraiser, though employed in the field, who opined in his report that plaintiffs properties will not suffer any diminution in value as a result of construction on Lot 4. Garvin considered the properties of the Lavallees and each of the three plaintiffs and he concluded that there will be no diminution in value because of two things. First, he advanced the position that plaintiffs cannot sustain a loss of view if they have no right to the view which is protectable, ie. if there is no right to prohibit the view from becoming lost. Because the titles involved contain no restrictive covenants regarding views, and the bylaws have no provisions protective of view or privacy, Garvin contends that the plaintiffs cannot sustain any loss of view, and therefore have no basis to complain about the decline in the value of their properties attributable to impairment of their views by the challenged project. Garvin also asserts that the views involved are already limited by foliage, which would be cleared when the proposed house on Lot 4 is built. The impairment of view, Garvin says, is an issue primarily, in any event, for plaintiff DiMasi, whose property is across the street from locus, and whose current view, across the long-vacant Lot 4, is out to the water. The other plaintiffs, Garvin believes, will suffer either no impairment of view, or a minor infringement of but 3 feet on one side. Garvins report provides no comparable sales data in support of these contentions. Garvin also opined in his report that the new construction proposed for Lot 4 will exceed the value of each plaintiffs home, and will automatically raise those values, producing a net gain in value despite any diminution that might flow from impairment of views.

The Garvin report is not, however, as an evidentiary matter, proper to remain in the summary judgment record before this court. Plaintiffs moved to strike the Garvin submission. They pointed out that the report was unverified, and did not contain or come accompanied by an affidavit by Mr. Garvin. Their contention is correct. The report is nothing more than a report, and lacks the evidentiary character needed to comply with Mass. R. Civ. P. 56(e). Met with this objection, the Lavallees filed, not long before hearing, something which they contend removes this fundamental defect afflicting the Garvin reportthey submitted a single sheet signed by Garvin, referencing the earlier filed report, and containing a statement signed by a notary public that Garvin had appeared before her, proved his identity to her, and to her acknowledged... that he signed the preceding or attached document voluntary for its stated purpose. This is plainly not an affidavit or anything resembling one. It does not in form or words constitute an oath or affirmation by Garvin as to the truth or accuracy of the report submitted earlier. The report remains unverified and is not entitled, as a matter of the law of evidence, to inclusion in a proper summary judgment record. On this basis alone, I allow the motion to strike the Garvin report.

Neither is Garvin shown to be competent to serve as an appraisal expert. To give a proper affidavit, Garvin would have had to show that he is competent to give expert appraisal testimony on the stand. Although evidently employed in the appraisal business, Garvin is not a certified or licensed appraiser authorized to appraise property and issue appraisals in accordance with G.L. c. 112, § 174 and 264 CMR 6.01. Without more, I cannot on the record materials submitted to me indulge an inference of competence simply because Garvin may be employed in the appraisal field. Garvins lack of properly proven credentials and expertise provides an independent ground for my allowance of the plaintiffs motion to strike his report.

I therefore decide the pending summary judgment motions without consideration of Garvins unverified report, which I have ruled is not properly part of the summary judgment record. [Note 2]

Without the Garvin report to challenge the plaintiffs aggrievement, they need not respond to unsupported assertions that they, though plaintiffs entitled to a presumption of standing, lack it because their properties will not shrink in value if the challenged construction proceeds. Nevertheless, the record does contain a proper affidavit, and a full appraisal report supported by affidavit, submitted by plaintiffs to prove their aggrievement on the grounds of diminution in value. Plaintiffs have responded with an affidavit from Arthur C. Larrivee, a certified appraiser and licensed broker with 40 years of experience. Addressing the question of whether construction of the proposed home on Lot 4 would have an effect upon the value of the abutting properties, and using comparable sales, Larrivee opined that the values of 7 and 11 Roby Street would be reduced by 5 percent or $22,500 and $23,750, respectively. Furthermore, Larrivee stated that Lot 4 is extraordinarily undersized in relation to the current zoning bylaw requirements and the construction would intrude on the privacy of these lots. Larrivee averred that 10 Roby Street would be devalued more intensively--by 15 to 20 percent, or $60,000both because of the crowding of the neighborhood by construction and the resultant elimination of the ocean view which that property has enjoyed for many years.

Larrivees affidavit and verified report tend to show that the diminution in value which he opines will befall the plaintiffs properties if the Decision is upheld flows not only from the impairment of the plaintiffs views, but also from the increased density and congestion that will be present in the immediate neighborhood of Lot 4 if a house is built upon it in accordance with the plans submitted to the Inspector.

It is doubtful that diminution in value which derives only from loss of view may, given the current state of the law of standing, support the requirement of aggrievement, if there is not a protection of view afforded to plaintiffs in the local zoning law, or as a matter of contract or property rights. But where the diminution in value can be found to flow from an excess of density produced by a building project which violates the density and dimensional regulations of the zoning law, that harm does satisfy the requirement of aggrievement. See Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329 , 330 (1993). In Standerwick, supra, 447 Mass. at 31, the court analyzed the holding in Tsagronis: The plaintiff-abutters in that case appealed from the issuance of a variance under G.L. c. 40A, claiming that construction of a house on a neighboring nonconforming lot would partially obstruct their water view, thereby diminishing the value of their property. The trial judge found that the plaintiffs were aggrieved persons under G.L. c. 40A, §17, and this court concluded that the judge was warranted in so finding. ... Tsagronis is consistent with our determination in this case. The plaintiffs identified an injury personal to them: the diminution in value of their property. The attendant legal interest that the zoning scheme at issue protected was the interest in preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulations allow. ... It was the plaintiffs claim that the issuance of the variance adversely impacted them directly and that their injury related to a cognizable interest protected by the applicable zoning law  the interest in preserving a certain level of density in the zoning district  that conferred standing on them.

There is little distinction between the facts of Tsagronis, approvingly dealt with by the Standerwick court, and those in the case now before this court. In Tsagronis, of course, the challenge was to a variance; here it is to a refusal to revoke a building permit issued based on a statutory exception to the otherwise required minimum lot size. In either case, however, the consequence is that if the challenged decision of the local board is left unreviewed, there is risk that the legal interest, in preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulations allow, may well be compromised. If the plaintiffs are correct that the section 6 exceptions are not available to the Lavallees, but the plaintiffs standing is not established, then Lot 4, which contains only a small percentage of the currently required lot size, will be built upon in the plaintiffs immediate neighborhood.

I conclude that the plaintiffs aggrievement, derived from their presumptive standing, remains intact notwithstanding the Lavallees summary judgment challenge. The Garvin report, having been stricken, does not work to cast the plaintiffs standing in controversy. No trial is required on the question of aggrievement.

I now consider the merits of the case. Plaintiffs assert that the Lavallees and their predecessors, who did not erect a structure on Lot 4 for approximately a half-century following the hurricane that caused the removal of the small home once there, have abandoned their intention to rebuild as a matter of law and, as a result, are prohibited from building. The Lavallees respond, first, that plaintiffs appeal comes too latethat they are barred from pursuing this theory by the 2000 Decision, which never was appealed by anyone. In addition, the Lavallees argue that, even if consideration of the issue is not barred by the prior proceedings in the Town and before the Board, on the merits the plaintiffs argument fails. I first turn to the issue of preclusion.

The Lavallees contend that the lack of any judicial appeal from the 2000 Decision precludes plaintiffs from bringing the suit now before the court. In effect, the Lavallees take the position that the 2000 Decision is binding on the plaintiffs on the entire general question whether or not a house may be built on Lot 4. The Lavallees invoke the defense of res judicata, which encompasses issue preclusion (also known as collateral estoppel) and claim preclusion (also known as merger and bar).

Issue preclusion prevents relitigation of an issue determined in an earlier action, where the same issue arises in the next action. For there to be issue preclusion, . . . a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication. Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453 , 457 (2006)(citations omitted). Additionally, the issue decided in the prior adjudication must have been essential to the earlier judgment[, and i]ssue preclusion can be used only to prevent litigation of issues actually litigated in the prior action. Id.

Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been litigated in the action. Petrillo, 65 Mass. App. Ct. at 457. Three elements are required: (1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits. Id.

The case now before me does not provide a proper occasion to apply these defenses to prevent the pending judicial appeal. First, there has been no prior litigation, in the sense, at least, of a judicial proceeding in a court of record. What there was, in 2000, was an administrative appeal to the Board from a decision by the building inspector, who had declined to grant a building permit, because he thought two undersized lots had merged into one for purposes of zoning compliance. After a hearing by the Board, it overturned that decision. There was no pursuit of the permit thereafter, for some five years. Neither was there any judicial appeal taken by anyone unhappy with the Boards 2000 Decision.

The proceeding before the Board in 2000, however, was not in kind the same as an action in a court. The Appeals Court has declined to hold that a local zoning board is the equivalent of a court of competent jurisdiction, Petrillo, supra, at 457, assuming, without deciding, that question. In Petrillo, the Appeals Court was careful to caution about the many reasons that would counsel against treating decisions of zoning board of appeals as final determinations of the sort that would qualify for preclusive effect. There are many good reasons to treat the determinations of local zoning boards differently than the adjudications of courts of law. The Board, like all zoning boards, does not conduct formal evidentiary hearings; the rules of evidence are not employed, and there is not sworn testimony offered or cross-examination available. More to the point, the proceedings before a zoning board do not proceed on structured pleadings, which would have the effect of laying out with some certainty the theories and claims on which a party seeks to have the board decide in its favor. Interested parties, while entitled to notice of such a hearing before the local board, are not warned, as they are when served with process in a judicial proceeding, that their failure to participate will result in default entering against them. This lack of formality and structure suggests that the breadth of what has been decided in a proceeding before a zoning board often cannot be established with precision. The resulting uncertainty makes it inappropriate to foreclose future claims and positions based on the determination of a local zoning board. The issue determined earlier may be a narrow one, and removed from what actually is before a successor board at some later time.

Here, the appeal to the Board, which resulted in the 2000 Decision, was instituted by Coletti, who asked the Board to overturn the Inspectors decision that his Lot 4 had, for zoning purposes, merged with Lot 5, and for that specific reason was not buildable. We do not have a verbatim transcript of the proceedings before the Board that led to the 2000 Decision; a fair inference is that the discussion before the Board in 2000 was concentrated on the merger (or not) of Lots 4 and 5, based on the nexus that the inspector had concluded existed between the related Coletti family members who held record title to those lots in the past. If the relationship was strong enough to establish a common control of the two lots, then the law would have required their merger to minimize non-conformity, and the benefit of the exception sought under the statute would have been unavailable.

The facts which must have been central to this determination concerned the interrelationship of the Coletti family members involved. The Board, evidently satisfied that the family nexus was insufficient to bring about merger, disagreed with the building inspector. There is nothing, however, in the record to suggest that the Board which issued the 2000 Decision heard anything about (or even knew about) the details of prior construction on Lot 4the building which came down during Hurricane Carol. There is nothing to suggest that the Board which issued the 2000 Decision had any reason to consider, much less decide, this essentially distinct factual and legal issue. If the Board then knew that there had been a house on Lot 4 in the 1950's, the question of the merger of the two lots would have been of little moment, because, once built upon, Lot 4 would have not enjoyed the section 6 protection afforded to so-called virgin lots, at least not without seasonable rebuilding (see discussion below).

To adopt the Lavallees position would require me to hold that in every instance where a landowner, turned down for a building permit, pursues his or her right to an appeal before a zoning board, the neighbors must at that time argue to the Board each and every reason why the lot involved is not buildable. This was not a case where a building permit issued to Coletti in 2000, and neighbors sought to have the building inspector revoke the permit. Perhaps, in that event, the neighbors might have had more of an obligation to advance each of the distinct reasons why they felt the owner of the lot was not entitled to a building permit. And if the neighbors had mounted a challenge to an issued building permit before the Board, and had been turned down by the Board, they would have difficulty surmounting their decision not to have taken a judicial appeal under G.L. c. 40A, §17. But that is not what happened here. Here, the neighbors were not the moving parties before the Board. It was Coletti who was seeking to overturn the denial of a permit by the building inspector. It would be less than fair to bar all later challenges by neighbors, no matter how meritorious, and no matter how unrelated to the subject matter of an earlier hearing before the zoning board, because the neighbors failed to pursue a judicial appeal at the time. This is all the more compelling a point in this case, because of the failure of Coletti, the petitioner before the Board in 2000, to follow up and take out the permit. It is not fair to the neighbors to bar them, based on a decision of the Board that Coletti never even followed up on, and only five years later decides at last to pull the permit.

For these reasons, I conclude that plaintiffs are not precluded from making the argument that the improvement of Lot 4 in the 1950s prevents it from being built upon many decades later. [Note 3]

In Dial Away, the plaintiff purchased land with a dwelling and garage upon it in 1969; they had been lawfully built by the time Auburn changed its zoning bylaws. Id. The house then was demolished. Id. at 166. Twenty one years later, plaintiff obtained a permit to demolish the garage and subsequently, sought a permit to erect a single-family home on the lot. Id. The court found that the 23-year lapse of time after demolition was sufficient to establish abandonment as a matter of law. Id. at 172. The Dial Away court held that once a lot (with at least 5,000 square feet of area and 50 feet of frontage) which would otherwise be entitled to the protections of the fourth paragraph of G.L. c. 40A, §6, has been built upon, its right to build is no longer determined by that fourth paragraph, but rather by the first paragraph of section 6. Id. at 167. The fourth paragraphs protections belong only to lots that are vacant and have never been improved with buildings. Where a building has been put on the lot, and then demolished, the right to the benefit of section 6 is available only if the prior-nonconforming nature of the lot has not been abandoned. It was in this context that the Dial Away court addressed the question of abandonment, concluding that it had occurred as a matter of law, given the length of time that the former structure was missing from the lot.

Here, a house owned by the Coletti family was destroyed in 1954 by Hurricane Carol. The record establishes that at that time Lot 4 was already smaller than the zoning law allowed. While the Coletti family surely could have pursued rebuilding of the house promptly, they did not. They continued to own the lot in its vacant condition for decades. It appears from the record that it was not until 1987 that the Coletti family obtained a permit, which they then did not use. Coletti sought another permit in 2000, initially denied by the inspector, whose decision was overturned by the Board in the 2000 Decision. However, no permit was issued after this victory. On this record, it is not until December 2005 that a permit was sought which might, but for the now pending appeal in this court, be used to reconstruct a house on Lot 4. This passage of time far exceeds that considered in Dial Away. The request to rebuild certainly came too late. Abandonment exists as matter of law.

Lavallee argues that due to the hurricane, destruction of the house was involuntary. This is of course so. There is no dispute that, had reconstruction been pursued promptly after the storm and the casualty, there would have been an opportunity to rebuild the structure and preserve it as a prior non-conforming one. But it is not correct that an involuntary destruction, as by storm, affords an unlimited time to rebuild a structure that would no longer comply with the dimensional requirements then in effect. Wareham By-Law Art. VII, § A provides that if a nonconforming structure is damaged or destroyed, it may be rebuilt, but if the building, structure or premises or the use thereof has been or shall be abandoned or similarly discontinued for a period of two years, it shall not be reestablished and future use of said building, structure or premises shall be in conformity with this by-law. Here, the lapse of time from the destruction of the house to the issuance of the first permit, 33 years, is alone sufficient to warrant abandonment. All the more so of the more than 50 years which elapsed between the destruction and the most recent permit, that now is the subject of the Decision under review in this court. Lot 4 cannot be built upon as of right, as the Lavallees claim, and the Decision of the Board was in error. A judgment will enter reversing the Decision, requiring the Board to direct the Inspector to rescind the building permit, and declaring that Lot 4 has no benefit of the protections provided under either the first or fourth paragraphs of G.L. c. 40A, §6.

The Lavallees motion for summary judgment is DENIED. Plaintiffs motion for summary judgment is GRANTED.

Judgment accordingly.

Gordon H. Piper

Justice

Dated: July 8, 2008.

FOOTNOTES

[Note 1] Record title to the improved property at 7 Roby Street, Wareham, is held by Georgiann L. Hellmuth, as Trustee of the Hellmuth Realty Trust. This action originally named plaintiff Kirk Hellmuth, son of Georgiann, as the owner. There are uncontroverted affidavits from both that Kirk is a beneficiary of this Trust, that he is, as beneficial owner, a regular occupant and user of the residence at that address, and that he has been authorized by his mother, in her capacity as trustee, to participate in this litigation. To clarify the status of the parties in this case, I allowed a motion to add Georgiann, as trustee, as a party. With this addition, the court has the correct party or parties before it concerning the 7 Roby Street property. Unless otherwise indicated, references in this Decision to Hellmuth are to both parties sharing that name.

[Note 2] For the reasons given, the motion to strike the Garvin report is allowed. The remaining motions to strike are denied.

[Note 3] The Lavallees also contend that the plaintiffs were late in filing their request for rescission of the building permit issued by the Inspector on December 10, 2005 to Thomas A. Coletti, Trustee--and thus in taking the administrative appeal to the Board, after the Inspector declined plaintiffs written request that he rescind that permit. G.L. c. 40A, s. 8 provides that a person aggrieved by a refusal of an enforcement officer to enforce the local zoning law as requested may appeal to the permit granting authority, in Wareham, the Board. Under G.L. c. 40A, s.15, [a]ny appeal under section eight to a permit granting authority shall be taken within thirty days of the order or decision which is being appealed. Plaintiffs did not request enforcement by the Inspector until their counsels letter of February 21, 2006. The Lavallees say that the delay, from the issuance of the permit on December 10, to the request for enforcement on February 21, is fatal to the plaintiffs subsequent administrative and judicial appeals. This is incorrect. The record contains uncontroverted averments by plaintiffs that they did not have any knowledge of the issuance of the building permit on December 10, that there was no work undertaken on Lot 4 thereafter, and that plaintiffs first learned of its conveyance to the Lavallees in February, 2006. In that month, after seeing a trade publication report of the recording of the deed, which prompted plaintiffs further inquiry at Wareham Town Hall, plaintiffs were led promptly to the knowledge that the Inspector had issued the permit now challenged. On these facts, not in substance challenged in the affidavits from the Lavallees, there was no improper delay in pursuit by plaintiffs of their request for enforcement. Lot 4 had stood vacant, from all that appears in the record, at all times since the destruction of the residence there a half century earlier. No permit issued during the five years between the 2000 Decision and December, 2005. There was no reason plaintiffs would have or should have been apprised of the issuance of the permit at that time, and, promptly after becoming aware of it, they commenced and pursued timely their administrative remedies. On these facts, this case is governed in pertinent respects by Fitch v. Board of Appeals of Concord, 55 Mass. App. Ct. 748 , 751 (2002), in which the Appeals Court noted that the request for enforcement procedure was independent of the right to take an appeal under G.L. c. 40A, s. 15, within thirty days of the issuance of a permit. That was so because there is no public notice of the issuance of a building permit. If a s. 15 appeal were the sole remedy for a party aggrieved, the recipient of a permit could keep the permit under wraps for thirty days and then would have succeeded in foreclosing any challenge. Cf. Elio v. Zoning Bd. of Appeals of Barnstable, 55 Mass. App. Ct. 424 (2002). There is nothing to suggest that there is in Wareham any local law or regulation which routinely provides notice to neighbors of requests for, or the issuance of, building permits on nearby properties. For this reason, the holding of Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008) does not apply in the case at bar. Especially given the length of time which elapsed between the 2000 Decision and the issuance of the building permit in December, 2005, there is no reason to hold that the plaintiffs had any duty of inquiry to learn, at successive intervals of less than thirty days, whether or not a building permit had issued for Lot 4.